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19 Hastings Const. L.Q. 937 (1991-1992)
Gender Verification Testing: Balancing the Rights of Female Athletes with a Scandal-Free Olympic Games

handle is hein.journals/hascq19 and id is 947 raw text is: Gender Verification Testing: Balancing the
Rights of Female Athletes with a
Scandal-Free Olympic Games
By PAMELA B. FASTIFF*
Introduction
This Note discusses the little-known controversy surrounding the
test used by the International Olympic Committee (IOC) to verify the
gender of all female Olympic athletes. The IOC's reason for using the test
is to prevent men from competing in women's events.' Although this
topic has generated controversy in the medical field,2 it has been largely
ignored by the legal community. This Note discusses the constitutional
problems with the gender verification test and proposes an alternative
method for the athletes who are subjected to the test.
This Note highlights two areas of constitutional concern and sug-
gests possible alternatives. First, this Note examines a possible Fourth
Amendment violation, including a comparison of drug testing cases with
the IOC's use of gender testing, and considers issues of reasonableness,
consent, privacy, and other competing interests.
Next, this Note examines the equal protection problems posed by
gender testing. Since only women are required to take the test, this Note
will discuss the standard of review and attempt to determine if the test
violates the right of female athletes to equal protection of the laws. Ad-
ditional areas of concern beyond the scope of this Note are jurisdiction of
a United States court over the IOC and standing of an athlete to sue the
OC.3
* B.A., Wellesley College, 1987; Member, Third Year Class.
1. See infra notes 5-8 and accompanying text.
2. Albert de la Chapelle, Gender Verification of Female Athletes, LANCET at 1265 (1987)
[hereinafter de la Chapelle, Gender Verification]; Albert de la Chapelle, The Use and Misuse of
Sex Chromatin Screening for Gender.Identification of Female Athletes, 256 JAMA 1920 (1986)
[hereinafter de la Chapelle, Use and Misuse of Sex Chromatin].
3. If these constitutional concerns became the subject of a lawsuit by an American ath-
lete or athletes, a major hurdle would be whether or not the IOC can even be subject to United
States jurisdiction. No court has ever directly faced that question. See generally James C.
Goettel, Note, Is the International Olympic Committee Amenable to Suit in a United States
Court?, 7 FORDHAM INT'L L.J. 61-82 (1983-84) (concluding that the IOC has the legal capac-
ity to be sued, but that foreign policy considerations compel restraint). See also International
Organizations Immunities Act, 22 U.S.C.A. § 288 (West 1990); Amateur Sports Act, 36

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